In an interview with Ars, Rep. Zoe Lofgren (D-CA) slams the government's …

At 9:30pm PST on February 11, US Immigrations and Customs Enforcement (ICE) seized the domain mooo.com. They ordered the domain name's registrar to redirect all traffic headed for mooo.com to a government IP address, one which displayed a single stark warning that the domain name had been seized for involvement with child pornography.

But the mooo.com domain name was shared between 84,000 sites; every one suddenly displayed the child pornography warning. The mistake was soon corrected, but the free domain name provider running mooo.com warned users that removal of the banner from their sites might "take as long as 3 days."

One outraged user took to his blog to tell ICE to "get out of my Internet. You'd get no argument from me that there are truly distasteful and illegal things on the Internet. That's true of any society. But there are also proper ways to deal with these problems. Pulling a total domain, sweeping up innocent people along the way, feeling that you don't have to comply with due process of law and indicating that you don't give a damn is wrong. It's not as wrong as child pornography or counterfeiting, but it's still wrong That's to say nothing of any damage done to my name or reputation."

Mooo.com had been seized as part of ICE's Operation Protect Our Children (the better-known Operation: In Our Sites targets piracy and counterfeiting). To seize the site, an ICE agent had drawn up an affidavit which was signed off on by a federal magistrate judge—but neither the free DNS provider nor the actual site operator were notified in advance or given any chance to defend themselves. (Domain owners can sue the government to recover their sites later, if they wish.)

Rep. Zoe Lofgren (D-CA), who holds a law degree, is furious about the mistake. At a recent Congressional hearing, Lofgren grilled IP Czar Victoria Espinel about the incident and stood up for the 84,000 affected sites. "If I were them, I'd sue the department," she thundered.

Rep. Zoe Lofgren questions Victoria Espinel

Espinel insisted that "due process" was built into ICE's operations, which simply applied seizure law used in narcotics and other cases to Internet domains. Besides, no one whose domain had been seized had sued the government to get it back; the process, she said, was in fact snaring pirates.

Lofgren wasn't appeased. And while she's on the warpath against domain seizures, she also faces the specter of a related Web censorship bill called the Combating Online Infringement and Counterfeits Act (COICA). COICA allows the government to block websites, to prevent advertisers from working with websites, and to keep credit card companies from processing payments to blacklisted sites. It's Operation: In Our Sites on steroids.

Nevertheless, Senator Patrick Leahy (D-VT) has promised that COICA will become law this year.

Ars spoke to Lofgren about her opposition to both approaches, why a domain seizure isn't like a cocaine bust, and whether she can forge an alliance with big-government-fearing conservatives to derail COICA.

"They can seize Yahoo or Google or Facebook"

Ars: Could you articulate for our audience what your basic concerns are with the approach that ICE is taking with these domain names seizures?

Rep. Lofgren: Where do I start? First, I think that they [ICE] don't even have the authority to do what they're doing. Their effort to essentially seize—I think illegally—these domain names lacks due process, in some cases has violated the First Amendment rights of individuals.

I think I mentioned during the hearing the debacle with the mistaken domain name takedowns in the pornography effort where they basically slandered thousands of people by saying that their sites had been taken down as consequences of child pornography. Can you imagine as a small business person what that would do to your business, if you are completely innocent? It's a mess.

Their apparent complete disregard of the Digital Millennium Copyright Act remedies, where Congress laid out a scheme where you get notice and takedown—that's the way you deal with this. They never apparently even inquired about that.

Further, I think it's just stunning to think that they would believe that linking sites—they went after Torrent Finder. It's a search engine! What's that got to do with this? I mean, if they're right that they can simply seize that search engine, they can seize Yahoo or Google or Facebook.

Ars: On the question of linking sites [which host no infringing content], some of the people I talk to in the content industries will say, “Look, those aren't equivalent at all. The sites that were taken down were all about watching illegal TV broadcasts on the Internet, as opposed to Google, which has lots of non-infringing uses.”

Rep. Lofgren: Well, I don't think that's correct. The rule has been that you can't destroy legitimate businesses because you find among the legitimate business activity an infringing use. They've completely violated that. In the case of the domain name takedowns, they didn't even do the most basic inquiry, apparently. If you had Googled it, you would have seen non-infringing uses right away.

51 Reader Comments

On a more serious note, I think its a great idea to tap in the ''big government'' fear of the tea party folks. You should also point out the communist-like approach of the ICE. Anything that could vaguely connect the ICE to anything muslim would be great.

Sorry Aurich, fail on the graphic this time. Several elements are at issue; position of the sledge, connection of smashing a computer to seizing a web domain, etc. Really the first graphic in a long time I've had any issue with. Most are excellent. Perhaps a "pulling the plug" analogy?

Watching that congress clip was infuriating for all sorts of reasons. As in:~ "Leave the fracking microphone alone, woman! Stop stalling for time by spouting nationalistic gibberish and answer the damn questions!"

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

point 1: businesses don't have first amendment rights, only individuals within it do. It;s called ":commercial speech" and is has been ruled by the Supremes to not have full first amendment coverage. The states can't prevent the dissemination of truthful information about lawful activity, but that's the extent of the protection for business. A business hosting child porn can not consider it free speech.

point 2: personal sites, journalism ,etc, have some protection, but even "free speech" has limits, and there have bee numerous cases such. You can't openly threaten people in print, certain things illegal in the physical world can't be put on display in graphic or print form, etc. Free speech is measuerd by TPM (Time, place, Manner). You can't have your voice silenced, but the government can limit your audience and place of speeking to appropriate forums, and in cases of "violent speech" they can silence you completely. You can discuss, openly, even in public, organizing an overthrow of our own government, but you can not openly discuss an assassination, counter-military action, etc.

Point 3: speech or not, if the activity being conducted is illegal, and knowingly so, and in some cases (limited by some protections for content providers), simply knowing it;s happening and not trying to stop it, is enough to have a company charged.

In this case, we have "85,000" sites. The vast majority, put up on mooo.com to do things other hosting sites would never allow, many of which violate one or more of the above exemptions to free speech or business activity. Mooo.com not only knew of the existance of these sites, and the activity, and did nothing (for example, it is federal law to IMMEDIATELY report any child pornography you see, period), they openly marketed to such people to host on their site.

Look at the list of sites targeted and taken down. Every single one was directly involved with hosting or linking to illegal content as a PRIMARY business activity. You can not deny this.

...and no due process? someone doesn't understand the definition of due process. It does NOT mean going to court. it means following a process, as documented in case or congressional law, such to perform a task of criminal or civil investigation while preserving the rights of the individual. As it applies to companies, unless they're registered journalists, they have no free speech right, so taking down their web site as an action to prevent ongoing illegal activity while the business awaits a trial (no different to seizing drugs from a dealer before the trial takes place). In this case, the law requires, by due process, that a federal magistrate sign off on the seizure before the activity takes place. This is a similar process to a warrant, but goes FURTHER, in that a federal judge actually reviewed the case itself. A warrant is a terribly easy thing to get based on little more than justified suspicion, but THIS action actually takes previously collected evidence, so it;s not just due process, its HARDER to do than getting a warrant....

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is the key to this argument. Without due process, these seizures simply aren't legal. This is the supreme law of the land; it's not really up for dispute. Your arguments regarding child porn are specious; nobody said the host had known the content was present, from what I have seen. Had they known, that'd be different.

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

Ant another one who doesn't get it. Due Process IS the process you go through, and the government documents, such to seize and potentially later reclaim that property. It IS the process, how can you "breech" it by following it?

What, are we supposed to just let the accused "hold on" to that paraphernalia and contraband until trial? Due process requires simply there be a process, set to as best as possible protect rights while enforcing a law, providing clear documentation of the suspected, the act of seizure of property, documentation of the crime this was based on, evidence found in plain view at the scene (or through warrant search), and documentation of how and when you can defend yourself later. A warrant is an ADDITION to due process, required in SOME case, as defined by the constitution and supreme court rulings.

In THIS case, they went above and beyond a warrant, actually having a preliminary "findings" review in front of a federal judge, and getting not just a warrant, but a judicial ruling and action definition. Since the crime in this case is IN PUBLIC, and clearly and easily documentable and repeatible (the judge can clearly see the infringing site is clearly still hosted online), this essentially is a grand jury federal hearing. Its so far beyond simple due process its laughable to considder otherwise.

The sites day in court comes later, but the criminal activity CAN and WILL be stopped by the government first, and THEN you get a chance to defend yourself if you want it (I'd advise against them wanting it in this case...).

COICA is dead on arrival in the senate - there is strong legislative opposition and I, for one, intend to do my part to get rid of any representative or senator bent enough to put their name on this legislation.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is the key to this argument. Without due process, these seizures simply aren't legal. This is the supreme law of the land; it's not really up for dispute. Your arguments regarding child porn are specious; nobody said the host had known the content was present, from what I have seen. Had they known, that'd be different.

"PERSON" is the key word here. This is a business, not a personal entity,and NUMEROUS supreme court rulings show that businesses have very little first amendment protection. And they're not being held to answer, yet, the government is simply stripping them of the ability to commit ongoing infractions by seizing the infringing property. In a drug bust, they take the dope now, give you a grand jury trial later, then a formal trial in which you defend yourself. This is step 1) ACCUSE, and seize under judicial order their property. Step 2, grand jury, comes later.... this IS the process of due process.

And they absolutely followed due process. They identified infringement, documented it clearly, presented it to a federal judge, who signed a court order! This didn;t sieze first ask later, they GOD A BENCH ORDER froma FEDERAL JUDGE, after not just presenting the 1 page of "suspicion" as required by a warrant (which btw, get rejected so rarely it makes national news when they do, it;s a joke if you think you;re "protected" by the need to issue a warrant, its little more than a delay of time...) they actually presented EVIDENCE to the judge. This is not just ordinary due process involved in arresting someone, or even a warrant issued for a search, this is BEYOND that process, and involved every bit of the legal hurdles both incur, and ticked every notch on due process law. .

And the host absolutely knew. The VAST majority of their hosted content was infringing content. They made a business of advertising themselves as a place for these people to come.... "free of judgment" about the hosted content.

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

Ant another one who doesn't get it. Due Process IS the process you go through, and the government documents, such to seize and potentially later reclaim that property. It IS the process, how can you "breech" it by following it?

What, are we supposed to just let the accused "hold on" to that paraphernalia and contraband until trial? Due process requires simply there be a process, set to as best as possible protect rights while enforcing a law, providing clear documentation of the suspected, the act of seizure of property, documentation of the crime this was based on, evidence found in plain view at the scene (or through warrant search), and documentation of how and when you can defend yourself later. A warrant is an ADDITION to due process, required in SOME case, as defined by the constitution and supreme court rulings.

In THIS case, they went above and beyond a warrant, actually having a preliminary "findings" review in front of a federal judge, and getting not just a warrant, but a judicial ruling and action definition. Since the crime in this case is IN PUBLIC, and clearly and easily documentable and repeatible (the judge can clearly see the infringing site is clearly still hosted online), this essentially is a grand jury federal hearing. Its so far beyond simple due process its laughable to considder otherwise.

The sites day in court comes later, but the criminal activity CAN and WILL be stopped by the government first, and THEN you get a chance to defend yourself if you want it (I'd advise against them wanting it in this case...).

I think that you're somewhat misunderstanding the term "due process." Here's a very short summary from Wikipedia:

Quote:

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state. When a government harms a person without following the exact course of the law it constitutes a due process violation which offends against the rule of law.

So regardless of what procedures the law has set up to perform a task (what you're incorrectly calling "due process"), the government must respect at all times the rights of individual citizens, as laid out in the law of the land, i.e. the U.S. Constitution. Seizing 84,000 websites due to the actions of some of them does not respect the rights of the individual citizens who own those websites (free speech, protection from unreasonable seizure of property, etc). Hence, even if you do everything "by the book", it is possible to violate due process, and Rep. Lofgren is arguing that ICE has done so in this case.

COICA is dead on arrival in the senate - there is strong legislative opposition and I, for one, intend to do my part to get rid of any representative or senator bent enough to put their name on this legislation.

And this is because you, like most, likely never read COICA in its entirety, let alone truly understand it. You're listening to FUD artists and propaganda and pirates.

I'm for internet freedom. I'm a systems analyst, I distrust my government, I regularly write my congressmen, but I understand COICA, and it's VERY clear limits and power. it can ONLY be used to target businesses not individuals, it can ONLY be used if a federal judge determines there is sufficient evidence not only of illegal activity, but of knowing and willing support of it by the hosting site, and all it does is cause a delay tactic while they get a new DNS registrar (and has little or no impact on IP-only run servers and bots).

COICA may be marketed as an anti-piracy tool, but that's just because the MAFIAAs are the ones with the money funding it in congress. in reality, it may be used for that in a few high profile cases, but it will really be used to target phishing sites, botnets, online scams, and all forms of other online activity that are real, victim based, crimes. Its a very simple and very powerful piece of legislation that is almost impossible to be used to target citizens. It will only have a moderate impact on piracy, but it will give our government VERY powerful tools to target and stop zero day exploits and phishing sites and scams, which rely heavily on DNS (unlike pirate sites, which could live very well on an IP alone).

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

Ant another one who doesn't get it. Due Process IS the process you go through, and the government documents, such to seize and potentially later reclaim that property. It IS the process, how can you "breech" it by following it?

Please explain, then, why it's ICE conducting these and not the US Marshals. There is a VERY well established process for this in drug cases which which is not being followed in the domain seizures. That being said, even that process is apparently still debated in legal circles.

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

Ant another one who doesn't get it. Due Process IS the process you go through, and the government documents, such to seize and potentially later reclaim that property. It IS the process, how can you "breech" it by following it?

What, are we supposed to just let the accused "hold on" to that paraphernalia and contraband until trial? Due process requires simply there be a process, set to as best as possible protect rights while enforcing a law, providing clear documentation of the suspected, the act of seizure of property, documentation of the crime this was based on, evidence found in plain view at the scene (or through warrant search), and documentation of how and when you can defend yourself later. A warrant is an ADDITION to due process, required in SOME case, as defined by the constitution and supreme court rulings.

In THIS case, they went above and beyond a warrant, actually having a preliminary "findings" review in front of a federal judge, and getting not just a warrant, but a judicial ruling and action definition. Since the crime in this case is IN PUBLIC, and clearly and easily documentable and repeatible (the judge can clearly see the infringing site is clearly still hosted online), this essentially is a grand jury federal hearing. Its so far beyond simple due process its laughable to considder otherwise.

The sites day in court comes later, but the criminal activity CAN and WILL be stopped by the government first, and THEN you get a chance to defend yourself if you want it (I'd advise against them wanting it in this case...).

I think that you're somewhat misunderstanding the term "due process." Here's a very short summary from Wikipedia:

Quote:

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state. When a government harms a person without following the exact course of the law it constitutes a due process violation which offends against the rule of law.

So regardless of what procedures the law has set up to perform a task (what you're incorrectly calling "due process"), the government must respect at all times the rights of individual citizens, as laid out in the law of the land, i.e. the U.S. Constitution. Seizing 84,000 websites due to the actions of some of them does not respect the rights of the individual citizens who own those websites (free speech, protection from unreasonable seizure of property, etc). Hence, even if you do everything "by the book", it is possible to violate due process, and Rep. Lofgren is arguing that ICE has done so in this case.

You fail to understand as well. they have to protect rights, but only in so much as their being a right to trial, a right to freedom from search and seizure, and this is a PERSONAL right, regularly stripped from businesses by the supreme court as a business is NOT a person.

That business they stripped a domain from, it catered, almost exclusively, to people using that system to host illegal content, and the site KNEW it. it also only stopped people using mooo.com/<their site> and had NO impact on people who had their own domain name there. ...and, it was readily fixed pretty quick for the rest who had legal sites there. A casualty of association with a business doing illegal activity. I know a few places who have had locked doors for illegal backroom activity, and private citizens lost property in seizures that way too, guess what, it happens initially, and there;s a process to recover your stuff. Sometimes you simply get it back, and in others, you take civil action for the loss.

They followed due process. they identified a crime, used active legislation to present evidence to a federal judge who issued a bench order (more powerful and specific that a simple 1 page warrant) and shut the BUSINESS down (and some people got hurt). boo hoo. Maybe they should have hosted with a more legit company, no one who catered to child pornographers...

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is the key to this argument. Without due process, these seizures simply aren't legal. This is the supreme law of the land; it's not really up for dispute. Your arguments regarding child porn are specious; nobody said the host had known the content was present, from what I have seen. Had they known, that'd be different.

"PERSON" is the key word here. This is a business, not a personal entity,and NUMEROUS supreme court rulings show that businesses have very little first amendment protection. And they're not being held to answer, yet, the government is simply stripping them of the ability to commit ongoing infractions by seizing the infringing property. In a drug bust, they take the dope now, give you a grand jury trial later, then a formal trial in which you defend yourself. This is step 1) ACCUSE, and seize under judicial order their property. Step 2, grand jury, comes later.... this IS the process of due process.

And they absolutely followed due process. They identified infringement, documented it clearly, presented it to a federal judge, who signed a court order! This didn;t sieze first ask later, they GOD A BENCH ORDER froma FEDERAL JUDGE, after not just presenting the 1 page of "suspicion" as required by a warrant (which btw, get rejected so rarely it makes national news when they do, it;s a joke if you think you;re "protected" by the need to issue a warrant, its little more than a delay of time...) they actually presented EVIDENCE to the judge. This is not just ordinary due process involved in arresting someone, or even a warrant issued for a search, this is BEYOND that process, and involved every bit of the legal hurdles both incur, and ticked every notch on due process law. .

And the host absolutely knew. The VAST majority of their hosted content was infringing content. They made a business of advertising themselves as a place for these people to come.... "free of judgment" about the hosted content.

I don't know if you're intentionally being dense or not but the 1st amendment says "government shall make no law...". I don't see a distinction for person/ business in there. Plus, since people do actual speaking, a spokesperson would have all the rights you're attempting to deny them.

That business they stripped a domain from, it catered, almost exclusively, to people using that system to host illegal content, and the site KNEW it.

You know, I'm just not going to take anything you say seriously when you're libeling them. I've yet to see you actually _prove_ your assertion above. Until you do, you're libeling them, and you're trolling. And since your assertion is rather exceptional, you're going to have to come up with some exceptional proof. So, prove it to us.

Of course, this all ignores the ridiculously common breaches of due process involved in "drug" seizures. It can take months in court to get your money or vehicle back through "due process," even if you were not arrested.

Ant another one who doesn't get it. Due Process IS the process you go through, and the government documents, such to seize and potentially later reclaim that property. It IS the process, how can you "breech" it by following it?

Please explain, then, why it's ICE conducting these and not the US Marshals. There is a VERY well established process for this in drug cases which which is not being followed in the domain seizures. That being said, even that process is apparently still debated in legal circles.

A) the ICE has jurisdiction here, as the DHS is part of the ICE. b) please explain how exactly you think due process was not followed, in such that 1) ilelgal activity was cited, researched, and documented as being associated with mooo.com, 2) a federal judge reviewed the case file, determined based on presented evidence that mooo.com was clearly aware, or under other acts did not take stept to be aware, or these violations, and 3) issued a bench order to block the sites under congressional laws. A grand jury trial will be pending for mooo.com, followed by a criminal trial, this is simply a seizure order (similar but more complex and with higher to attain metrics than a simple warrant, therefore MORE protecting of rights). c) drug cases have their own separate, and specifically governing process. Due process simply means there is one, they are NOT all the same, and differ in procedure based on TPM (time, place, manner), nature of crime, perceived public threat, and more.

theyre' not violating any person's rights, a COMPANY, which has but limited rights, conducted illegal activity. under our laws, we stop the company. Effected clients may have some limited rights, but most of them are civil rights against the firm that caused them loss thorough ITS actions.

The use of this power is not debated in legal circles, it's debated in forums like this one with people who do not understand our own laws properly. Due process is being followed, a very detailed and complete process including signature by a federal judge before police action is taken.

In this case, we have "85,000" sites. The vast majority, put up on mooo.com to do things other hosting sites would never allow, many of which violate one or more of the above exemptions to free speech or business activity.

Look at the list of sites targeted and taken down. Every single one was directly involved with hosting or linking to illegal content as a PRIMARY business activity. You can not deny this.

You are confused (or a troll). The sites listed in ICE's press release were NOT part of mooo.com. Take a look at http://www.google.com/search?q=site:mooo.com and point out which "vast majority" of those sites are illegal. Heck, the ones I see aren't even slightly shady: a Twitter log, personal home pages, electronics reviews.

That business they stripped a domain from, it catered, almost exclusively, to people using that system to host illegal content, and the site KNEW it.

You know, I'm just not going to take anything you say seriously when you're libeling them. I've yet to see you actually _prove_ your assertion above. Until you do, you're libeling them, and you're trolling. And since your assertion is rather exceptional, you're going to have to come up with some exceptional proof. So, prove it to us.

mooo.com and its sub-domains were actively hosting more than 10 child port sites. Its advertising was targeted at various underground activities, including bride shopping, child porn, piracy, and other ilelgal activities. This is not disputed. I can;t find source links to historical versions of the sites (all that is blocked from my current location, work firewalls and all), but this is not disputed.

the ISSUE, for the 85,000 sites, is that freeDNS was associated with mooo.com under freeDNS.afraid.org, and when mooo.com went down, due to how freeDNS set up their own systems, something the government could not have been party too, thousands of sub-domains NOT associated directly with mooo.com ALSO went down. THOSE domains were mostly back online in 3 days. This was an IT admin fuck-up is really what it was...

I would have stopped and invited her to take a moment to adjust the microphone to her satisfaction, and then continue... and then I would have interrupted again with the same invitation, word for word, each and every time she touched it.

The "due process" in question here is that ICE - representing Enforcement - needs an order signed by a judge / magistrate - representing Judicial - before they can seize the items in question. I would say they DID follow due process... just poorly. They DID get a signature from a magistrate. ICE screwed up in making the request too broad, targeting the domain and its 84,000 sites instead of the (undisclosed number) of individual sites they actually had the evidence to target. And the federal magistrate who signed that order to take down 84,000 sites clearly didn't understand what (s)he was signing.

At least I *hope* that's how it went down - I'd rather have a judge screw up and approve an over-broad siezure in ignorance, than to look at it and say "Yeah, 30 sites doing naughty things, fsck it, we'll take 'em all down ."

I would say the checks & balances were there... they just didn't work.

In this case, we have "85,000" sites. The vast majority, put up on mooo.com to do things other hosting sites would never allow, many of which violate one or more of the above exemptions to free speech or business activity.

Look at the list of sites targeted and taken down. Every single one was directly involved with hosting or linking to illegal content as a PRIMARY business activity. You can not deny this.

You are confused (or a troll). The sites listed in ICE's press release were NOT part of mooo.com. Take a look at http://www.google.com/search?q=site:mooo.com and point out which "vast majority" of those sites are illegal. Heck, the ones I see aren't even slightly shady: a Twitter log, personal home pages, electronics reviews.

I repeat what others have stated: provide references for your claim that most of *.mooo.com was illegitimate, or shut up.

there's some confusion here, and 2 stories really. 1 is mooo.com being shut down. the OTHER is freeDNS.afraid.org having 84,000 sites go down as a result. This was due to improperly configured DNS on behalf of freeDNS. The bulk of those effected sites were back up in 3 days. the government only specifically targeted mooo.com (and a few other unrelated sites), but when they yanked mooo.com's registry, OTHER sites tied to the same IP, but under different DNS, also went down. I blame FreeDNS for that issue, you NEVER host more than one top level domain on the same IP unless it's ok for them all to go down...

mooo.com and its sub-domains were actively hosting more than 10 child port sites. Its advertising was targeted at various underground activities, including bride shopping, child porn, piracy, and other ilelgal activities. This is not disputed. I can;t find source links to historical versions of the sites (all that is blocked from my current location, work firewalls and all), but this is not disputed.

You're posting to Ars right now. I'm confident you can access Google, Bing, or similar. If you can't provide a reference, then yes, it damn well is disputed.And in any case, a dozen out of 85000 does not constitute "a vast majority" as you specifically claimed.At this point the rest of us here have good reason to assume you are lying/trolling unless proven otherwise. That's due process for a public discussion board.

Let's be clear: I'm not saying I think that shutting down child porn sites is a bad thing. I just don't agree with the particular way in which they went about this.

zelannii wrote:

"PERSON" is the key word here. This is a business, not a personal entity,and NUMEROUS supreme court rulings show that businesses have very little first amendment protection. And they're not being held to answer, yet, the government is simply stripping them of the ability to commit ongoing infractions by seizing the infringing property. In a drug bust, they take the dope now, give you a grand jury trial later, then a formal trial in which you defend yourself. This is step 1) ACCUSE, and seize under judicial order their property. Step 2, grand jury, comes later.... this IS the process of due process.

And they absolutely followed due process. They identified infringement, documented it clearly, presented it to a federal judge, who signed a court order! This didn;t sieze first ask later, they GOD A BENCH ORDER froma FEDERAL JUDGE, after not just presenting the 1 page of "suspicion" as required by a warrant (which btw, get rejected so rarely it makes national news when they do, it;s a joke if you think you;re "protected" by the need to issue a warrant, its little more than a delay of time...) they actually presented EVIDENCE to the judge. This is not just ordinary due process involved in arresting someone, or even a warrant issued for a search, this is BEYOND that process, and involved every bit of the legal hurdles both incur, and ticked every notch on due process law.

The fiction that this is all legal because they "must have presented evidence to a judge who then signed a warrant so it's all just fine, nothing to see here move along" is, to be frank, a bunch of bullshit. These things are civil proceedings, not criminal forfeitures. The process seems quite different than you appear to think.

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And the host absolutely knew. The VAST majority of their hosted content was infringing content. They made a business of advertising themselves as a place for these people to come.... "free of judgment" about the hosted content.

You need to be careful stating unequivocally that a host knew about child porn or other illegal activity. I suspect that's libel or slander (unsure which since it's in writing but in the form of a personal statement, not a publication). Simply advertising "hosting free from judgement" (I'll take your word for that; I haven't read the ToS of the host nor have I seen their ads) could be easily interpreted to simply mean they allow personal nudie shots. Most web hosts explicitly forbid any adult oriented material, regardless of legality. I have a customer that was kicked off a host because she posted a picture of herself at a topless beach in France. The host didn't care about the legality; they had a "no adult content of any kind" clause and felt that was adult content so *BAM* her site was down.

I think that if I were to run a hosting company I'd like to have at least one person reviewing customer content to a degree but I don't know the host in question's staffing or cash flow so who am I to say they needed (or could) do so, let alone have a legal mandate to? Simply seizing on this one aspect of the host's business model and extrapolating it to say they knew a "vast majority" of their customers were "infringing" (infringing what, exactly?) is absurd in the extreme. We're talking about tens of thousands of customers. You either post specific numbers that were "infringing" or you've lost all credibility. Hell, we're talking about a seizure of domains targeting 10 child porn sites which affected 84,000 sites! You're saying the owners of mooo.com have a "vast majority" of their users who are "infringing". If we're talking about this one case, then at least 45,000 domains on there are also child porn sites! HOLY CRAP! (I know you said VAST majority but I'm erring on the side of caution so I'll lowball here for you.) Do you see the absurdity of your statements now?

Oh, and apparently at least one of the domains affected was a personal blog. How much more First Amendment related can you get than a personal blog?!

Furthermore, you need to differentiate "business" from "corporation" in your arguments. A corporation may or may not have the same rights as an individual. I even agree that corporations shouldn't have the same rights as an individual. That said, individuals make up the ownership of a corporation and a domain is an asset of the corporation so by seizing a corporate asset, the feds would be removing individuals' property, potentially without due process. IANAL but that sure doesn't sound good to me! Furthermore, many businesses are sole proprietorships, which are the same as the individual owner.

I'm not going to continue this debate here as I feel I've made the points that matter. I have better things to do with my time than to mince words on the subject. We'll just have to agree to disagree. Those with an open mind will read the various things posted and make up their own mind.

there's some confusion here, and 2 stories really. 1 is mooo.com being shut down. the OTHER is freeDNS.afraid.org having 84,000 sites go down as a result. This was due to improperly configured DNS on behalf of freeDNS. The bulk of those effected sites were back up in 3 days. the government only specifically targeted mooo.com (and a few other unrelated sites), but when they yanked mooo.com's registry, OTHER sites tied to the same IP, but under different DNS, also went down. I blame FreeDNS for that issue, you NEVER host more than one top level domain on the same IP unless it's ok for them all to go down...

Actually, it appears that you're pretty confused. If you read the linked source material, or the article itself, it is quite clear that mooo.com is a shared domain (operated by freeDNS). The DNS service that FreeDNS provides is the ability for users to register a SUBDOMAIN of mooo.com (or one of many other domains they have) and point it at their own server, much the same way that for-pay DNS providers provide domains below TLDs. freeDNS did not configure anything incorrectly, the problem is just that as the DNS provider to both the infringing and non-infringing sites, they were never notified - only their parent DNS provider was. The government targeted mooo.com which included independent, non-infringing registrants. This was a mistake that they admitted.

All of the sites (both infringing and non-infringing) had the same DNS server, but different hosts (with different IP addresses). Your claim that other sites are tied to the same IP is FUD, unless you were referring to sharing a DNS server, which is pretty much unavoidable - someone has to be authoritative for every domain.

Since you brought up the term top-level domain (though in a misuse of the term) a great anology for this situation would have been for the government to claim "illegalstuff.com" is hosting bad content, and the .com DNS servers are providing access to it, so let's pull down all of the .com TLD. They made an honest mistake and corrected it later. The problem a lot of people here (myself included) have with the situation is that such an oversight was even possible. Wouldn't a common-sense first step have been to contact the person hosting the site, or at least their nearest provider?

Domain lookups make it pretty easy to find out who owns a site, and if the ICE people had been doing their jobs, they would have been able to see that mooo.com was a DNS provider, and could have made the request to them rather than going to the top-level. The problem here isn't that the government screwed up per-say, its that a simple mistake was able to cost so much. The system is broken.

"Espinel insisted that "due process" was built into ICE's operations, which simply applied seizure law used in narcotics and other cases to Internet domains."

Not exactly a glowing endorsement. The policy used in narcotics cases is insane. If there is a whiff of drugs involved at all they can just take your stuff. For keeps. Cash, cars, computers, etc. Only crime you can do that for and it's a whole other mess that is completely at odds with the supposed basis of our system of law and justice.

...and no due process? someone doesn't understand the definition of due process.

Part of the process in this case is supposed to involved an investigation of the facts such that a prosecutor can honestly sign the statement submitted to the judge stating that to the best of his or her professional knowledge there is sufficient evidence to believe a crime has been committed and that the requested action is lawful and appropriate. In this case, even the most cursory investigation would have revealed that targeting the entire mooo.com domain to shut down ten child porn sites would affect eighty three thousand nine hundred and ninety sites that were not involved in the investigation and had nothing to do with child porn. So the prosecutor who signed that statement is absolutely guilty of either gross negligence (for not doing the appropriate investigation) or perjury (for stating that seizing the entire domain was a lawful and appropriate action in order to target less than .001% of the sites available at that domain). You can argue that in theory this program represents due process. But you can't argue that due process was actually followed, because it simply wasn't. The government either didn't do the necessary investigation, didn't understand the technical issues involved, or simply decided that it didn't matter. Whichever way it happened, due process was not followed.

If you need a more common sense example, think of it this way. Would it be legal and right for the government to seize the entire Empire State Building simply because they had evidence that illegal activity was taking place in one of the offices in the building?

If you need a more common sense example, think of it this way. Would it be legal and right for the government to seize the entire Empire State Building simply because they had evidence that illegal activity was taking place in one of the offices in the building?

Fantastic analogy! I think I'll steal that in the future if you don't mind.

ICE and the judge involved IMHO demonstrated total lack of competence in this mess.

Just because something has a domain name doesn't mean is is physically that all the subdomains are in the same place. An easy example of this is www.google.co.uk. The .uk would suggest that the site is in the United Kingdom but a traceroot shows that the site is really here in the US. For all we know some of the *.mooo.com sites are not even in the US.

This is ignoring the fact that all a DNS does is allow you to use names rather than remember convoluted numbers.